Federal Court of Australia

Services Australia v Bonney [2026] FCA 1437

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 6 July 2026 is granted.

2.    The draft notice of appeal is to be filed as the notice of appeal by 4.00 pm on 2 October 2026.

3.    The appeal is adjourned for a case management hearing at 9.15 am on 16 October 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    The applicant applies for leave to appeal interlocutory orders made by Judge Mansini on 22 June 2026: Bonney v Services Australia [2026] FedCFamC2G 1163 (PJ). Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) applies because the primary judge has only determined the issue of liability. The respondent, as a litigant in person, commenced an application in the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) and alleged contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), arising from his suspension and ultimately dismissal on 15 December 2023. The basis for each was serious misconduct concerning an assault at the workplace on 5 December 2023.

2    The filing date of the application in the Circuit Court is not revealed in the materials presently before me. The Circuit Court file date is 2024. The hearing before the primary judge occurred in April and June 2025. The orders of 22 June 2026 commence with:

The application is allowed to the extent of the findings that the Applicant was suspended and dismissed from his employment with the Respondent in contravention of ss 340 and 351 of the Fair Work Act 2009 (Cth).

3    This appears to be a determination of the liability issue, though it lacks the usual declaration when liability is separated from relief. In any event, her Honour also ordered:

In respect of the question of what (if any) relief be ordered:

(a)    By 4.00 pm on 13 July 2026, the Applicant is to file and serve evidence and submissions in support of the relief sought.

(b)    By 4.00 pm on 3 August 2026, the Respondent is to file and serve evidence and submissions in response to the relief sought.

(c)    The question of what (if any) relief may be granted will be fixed for mediation before a Judicial Registrar of the Court, to take place not before 5 August 2026, and if not resolved at mediation will proceed to hearing on a date and time to be advised.

4    The operation of those procedural orders was suspended by a combination of orders made by Longbottom J on 31 July 2026 in this proceeding and by the primary judge on 5 August 2026.

5    On 10 August 2026, I directed the parties to file short submissions on whether the application is one suitable for determination on the papers. Each party complied with that direction. The applicant was content for determination on the papers. The respondent’s submissions were ambiguous. For that reason, I conducted a brief case management hearing on 23 September 2026, at which the respondent confirmed that he was content for the application to be determined on the papers. It should also be noted that I raised with counsel for the applicant whether bifurcation of the proceeding before the Circuit Court is a primarily relevant consideration. In answer, the applicant relied on Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196 at [45], Katzmann, Snaden and Raper JJ.

6    The application recites the usual contentions in matters of this type: the judgment is attended by sufficient doubt to warrant reconsideration, and substantial injustice will result if leave is refused.

7    The primary judge found as follows. The respondent commenced employment with the applicant on 13 November 2023. He is an indigenous man. On 16 November 2023, he made a written complaint which was supplemented by two further complaints made on 17 November 2023 and a fourth complaint on 22 November 2023. The gravamen of his complaints is that he was orally referenced by another employee in very derogatory terms relating to his sexuality and his race. His complaints were investigated. The investigator determined that the complaints had not been substantiated: indeed, the conclusion was that based on interviews undertaken with the employees concerned, the investigator was “unable to find any evidence that the allegations did occur”. The respondent was invited to attend a meeting to discuss the outcome, but he did not participate.

8    On 5 December 2023, during a staff training session, the respondent physically assaulted another employee by punching him twice to the head. That employee had nothing to do with the complaints. The assault was the subject of an immediate internal investigation, which resulted in the respondent’s suspension from employment on 6 December 2023. Thereafter, a more detailed investigation was undertaken which resulted in his termination by formal notice on 15 December 2023. It should be understood that the decision-making process that led to the respondent’s initial suspension and later termination involved numerous employees of the applicant. Put simply, the respondent was terminated for serious misconduct.

9    The respondent lodged his FW Act application on two bases: (1) he had exercised a workplace right, by making his complaints and adverse action was taken contrary to s 340 of the FW Act; and (2) the suspension and termination amounted to unlawful discrimination because of his race, sexuality, or both contrary to s 351 of the FW Act.

10    The primary judge found that the respondent had engaged the reverse onus at s 361 of the FW Act: PJ [83] – [89]. The primary judge then set about identifying Ms McKay, amongst others, as the relevant decision-maker. Ms McKay did not give evidence, which the primary judge found to be dispositive in concluding that the applicant had failed to discharge the s 361 onus: PJ [92] – [99]. This led her Honour to conclude at [100] that the applicant suspended and then terminated the respondent’s employment in contravention of ss 340 and 351 of the FW Act.

11    The proposed appeal grounds are:

1.    The primary judge erred in law by finding that Lindie McKay’s involvement in the decisions to suspend and/or dismiss Thomas Bonney was beyond the required threshold such that Ms McKay’s state of mind needed to be interrogated in order for the Appellant to discharge the onus under s 361 of the Fair Work Act 2009 (Cth).

2.    The primary judge erred in law by failing to give reasons adequate to explain the basis upon which her Honour reached the conclusion that Ms McKay’s involvement in the decision to suspend and/or dismiss Mr Bonney was beyond the required threshold such that her state of mind needed to be interrogated in order for the Appellant to discharge the onus under s 361 of the FW Act.

3.    The primary judge erred in fact by finding that Ms McKay was involved in the decision to suspend and/or the decision to dismiss Mr Bonney which findings were not reasonably open on the evidence.

4.    The primary judge erred in law by denying the Appellant procedural fairness by finding that Ms McKay was a person involved in the suspension and/or dismissal decisions in circumstances where:

a.    the Appellant defended the proceeding on the basis that there was one decision maker in respect of each of the suspension and dismissal decisions;

b.    Mr Bonney did not allege that Ms McKay was involved in the suspension or dismissal decisions; and

c.    the issue of Ms McKay’s involvement in the suspension and dismissal decisions was not raised by the Court until trial, after evidence had been filed and served.

5.    The primary judge erred in law in finding a contravention by the Appellant of s 351 of the FW Act in circumstances where her Honour did not find (and it was not reasonably open to find) that Mr Bonney’s race was a substantial and operative reason for the suspension and/or dismissal.

6.    The primary judge erred in law by finding that the Appellant had not discharged the onus under s 361 of the FW Act in circumstances where, on the findings made, the only substantial and operative reasons for the suspension and dismissal considered by Michelle Bethune and Patrick Geary respectively did not include a proscribed reason.

12    The principles applicable are well understood: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 399; Monash Health at [45]; Bellamy’s Australia Ltd v Basil [2019] FCAFC 147; (2019) 372 ALR 638 at [7]. Frequently this Court is required to determine leave applications which, if granted, fragment the proceedings below, lead to increased cost and cannot be reconciled with the overarching purpose at ss 37M and 37N of the FCA Act. Where that is so, ordinarily leave should be refused: Latitude Finance Australia v Australian Securities and Investment Commission [2025] FCAFC 124 at [17] – [18]; China Australia Travel Group Pty Ltd v Yang [2024] FCA 671 at [15] – [17]. Despite the warnings in those cases, applicants persist in attempts at fragmentation. My initial view of this application was that it should be refused for the sound reason given by Bromwich J in China Travel at [15]:

The policy behind not allowing the fragmentation of a proceeding by an appeal proceeding, unless leave is properly justified and granted, is obvious enough. An appeal court needs to be able to retain control of its processes and in particular to resist an incomplete proceeding going to a final appeal hearing as of right, while still being able to permit such fragmentation in an appropriate case.

13    That said, on reflection I am satisfied that this is one application that should be granted. In my view, there is sufficient doubt about the correctness of the decision of the primary judge. I reach this view at an impressionistic level having reviewed the proposed grounds and the reasons of the primary judge. There is a real question as to how the primary judge reached critical conclusions about the contribution of Ms McKay to the decisions, the factual basis for the conclusion that she was a central actor and the reasons for rejecting the applicant’s evidence that there was only one decision-maker. There is also a question whether the global findings at PJ [99] – [100] are supported by the preceding factual findings. It is important that I not proceed further because if I determine that a grant of leave is appropriate, the appeal will then be heard by me unless I determine that it should be heard by the Full Court: s 25(1AA) of the FCA Act. Prima facie this appeal is one that should be heard by a single judge as it raises no issue of general principle and turns on limited facts.

14    On the question of substantial injustice, if leave were to be refused supposing the primary judge to have erred, I am satisfied that substantial injustice is likely to result. That is, the likelihood that the applicant will be subjected to civil penalties and significant additional costs by proceeding to a remedy determination (where the default position at s 570 of the FW Act applies): Monash Health at [45]. The evidence about costs is set out in the solicitor’s affidavit of Andrew Klein made on 6 July 2026, which I accept. The orders are based on a finding, amongst others, that the applicant bears responsibility for conduct of its employees comprising racial and sexual discrimination against an indigenous man, which is a serious finding for a government agency with numerous non-discrimination policies that were in evidence. Finally, there is the prejudice caused by delay. The proceeding in the Circuit Court has not moved with alacrity (for which there may be entirely justifiable reasons). In this Court, in my docket, it is likely that the appeal can be quickly listed and decided.

15    I therefore grant leave to appeal. The appeal is not one that justifies referral to a Full Court.

16    The matter will be listed for case management at 9.15 am on 16 October 2026, at which time a hearing date will be allocated.

Associate:

Dated:    29 September 2026